Double Citizenship under Indian laws and Voting Rights for OCIs resident in India: A Constitutional Analysis

Double Citizenship under Indian laws and Voting Rights for OCIs resident in India: A Constitutional Analysis

– Naren Thappeta and Mallika Sen

In the late 1940s and 1950s, most of the world was just coming out of and recovering from the Second World War. Suspicions between nations ran high as the world eased into the Cold War, and nationalistic tensions, albeit dulled by the horrors and catastrophic consequences of the World War, still strongly influenced foreign policy. At that time, almost all countries barred double citizenship (popularly known as dual citizenship), i.e., allowing its nationals to hold citizenship of more than one nation. With the passage of time, however, national laws on citizenship and related policy changed, and with more and more transfer of knowledge and labour across the world, double citizenship went from being the exception to the norm. Today, there are only a few major countries in the world that still bar double citizenship. India, China and Singapore are prominent amongst these.

Indians form the largest diaspora in the world, with Indian origin persons living across the globe. On account of this, over the years, there have been persistent demands from Persons of Indian Origin (‘PIOs’), in particular from those resident in North America and other developed countries, for the Government of India to grant double citizenship. In response to this, the then-Prime Minister, Atal Bihari Vajpayee promised double citizenship in 2003. However, when the Government of India finally responded to these demands in 2005 by amending the Indian Citizenship Act, 1955, the promise of double citizenship was diluted. It permitted those PIOs who are already citizens of foreign countries to register under the ‘Overseas Citizen of India (OCI) Scheme’.

Usually, the grant of OCI to a PIO whose local or domestic laws allow for some sort of double citizenship, is mistakenly referred to as double citizenship. However, the differences between the status of an OCI and a citizen are varied and significant. As an OCI, one does not get an Indian passport, cannot vote, cannot stand for elections, cannot usually hold employment with the Government of India or hold a constitutional post such as that of the President. What an OCI grant actually gives a PIO is a multiple-entry, life-long visa to India. Thus, contrary to popular belief, Indian law at present does not actually have any provisions for recognising or granting double citizenship. Generally, it is argued that it is such because the Constitution of India does not provide for double citizenship and this argument is strengthened by Section 9 of the Indian Citizenship Act, 1955.

However, it is our argument that Section 9 of the Indian Citizenship Act, 1955 is unconstitutional, and that the Constitution of India does not actually prohibit the Government from making appropriate amendments to laws to recognize double citizenship.

Further, we argue that once Section 9 is held to be unconstitutional, then first, there are two classes of persons (as explained later in this post) who should certainly be considered for double citizenship status; and second, that as per the provisions of Article 326 of the Constitution of India, voting rights should be conferred to OCIs resident in India.

This post makes reference to the following terminology.
(i) Regular Indian Citizen: This refers to a citizen of India, resident in India and holding an Indian passport. They have the right to vote and stand for elections.
(ii) Non-Resident Indians (NRIs)- This refers to an Indian passport holder who is not resident in India. He/she resides in a foreign country, but has not acquired citizenship of any foreign country. As per The Registration of Electors (Amendment) Rules, 2011, NRIs are allowed to vote and stand for elections in India.
(iii) Overseas Citizen of India (OCI)- This refers to a PIO who holds a foreign passport and has an OCI permit. Such person does not have the right to vote or to stand for election in India.
(iv) Overseas Citizen of India (OCI) resident in India- This refers to a PIO who holds a foreign passport and has an OCI permit and, at present, is resident in India. On account of OCI status continuing, such person also presently does not have the right to vote or to stand for election in India.

Barriers to Double Citizenship: Section 9 of the Citizenship Act
The primary barrier for recognition of double citizenship is Section 9 of the Indian Citizenship Act, 1955 which serves to operate as a bar on double citizenship by involuntarily divesting PIOs of Indian citizenship. This section reads as follows:

9. Termination of citizenship.—
(1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India.”

Absolute Bar to Double Citizenship- An Unconstitutional Anomaly?
It is our argument that such an absolute bar to double citizenship under Section 9 of the Act, is unconstitutional.

The source of power to make laws under the Citizenship Act stems from Article 11 of the Constitution of India, which reads -“Parliament to regulate the right of citizenship by law: Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.”

Despite the seeming broad powers which a cursory examination of the above Article appears to grant, the powers from that provision are not necessarily wide enough to impart constitutionality to Section 9. This article is actually an example of a ‘non-obstante clause’, and it is widely agreed that “… the wide amplitude of a non-obstante clause must be kept confined to the legislative policy and it can be given effect to, to the extent the Parliament intended and not beyond the same.” Thus herein, it becomes relevant to look at the intent of the framers of the Constitution as a guide to the legislative policy underlying Article 11 of the Constitution and the constitutional structure in general.

We first examine the rights and exclusions for the double citizens under the various provisions of the Constitution.

Disqualified to be member of Parliament under Article 102 and that of Assembly under Article 191. However, not disqualified to be removed as Panchayat member under Article 243f, etc.

3

Voting Rights

Yes

Can be denied (Article 326)

Cannot be denied if resident in India (Article 326)

Thus, the Constitution recognizes voting rights for all India-resident citizens (see Article 326), but expressly bars double citizens from holding constitutional positions and legislative positions at the national and state levels. The Constitution, however, does not bar double citizens from being or continuing in local (Panchayat and Municipal) elected positions (as per Article 243(f) and 243(v) of the Constitution). From this, it becomes evident that the Constitutional structure sought to provide an inclusive definition of citizenship (protecting the civil and property rights of all citizens), while addressing concerns of undue alien influence by precluding double citizens from holding political and constitutional positions.

This is an important point to keep in mind when trying to gauge the intent of the framers of the Constitution. This intent becomes even more clear upon referring to these relevant excerpts from the Constitutional Assembly Debates. (see 3.18.156 Alladi Krishnaswami Ayyar in the debates)

We now examine Article 9, which is often quoted as a justification for absolute bar of double citizenship. Article 9 of the Constitution of India reads –

9. Person voluntarily acquiring citizenship of a foreign State not to be citizens: No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State.

As a threshold matter, the express language of Article 11 itself states that Article 9 (which is in Part II of the Constitution) does not limit Parliament from making any laws. Therefore, it is our argument that Parliament may very well be within its powers to consider double citizenship under appropriate circumstances.

Moreover, a review of the debates at the constituent assembly (see 9.115.177 in the debates by Dr. B.R. Ambedkar, and also 9.117.36 by Alladi Krishnaswami Ayyar) confirms that Article 9 was meant for determining citizenship at the commencement of Constitution only (that too, to clearly determine the voters set with reasonable clarity for the very first elections in an urgency). Article 9, in its breadth, was never intended as any part of model for drafting of the citizenship laws, inferring from express statements in the debates.

Finally, the Constitution itself clearly distinguishes between ‘removal/divestment’ and ‘inclusion/ qualification’ in many cases, such as in Article 102(d) and Article 191. Article 9 was clearly a criterion for defining only ‘inclusion/ qualification’ of citizenship at the commencement of the Constitution (for determining voters list). It is not a provision for ‘removal/divestment’ as done by Section 9.

A Case-Law Based Analysis of the Constitutionality of Section 9 of the Citizenship Act, 1955: Observations and Comments
The above reasoning and conclusions would necessarily be tested against cases decided based on validity of Section 9. This includes the decision in Bhagwati Prasad Dixit `Ghorewala’ v. Rajeev Gandhi, which held that Section 9 is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country. Further, the decision in K.L. Modi v. Union of India, stated that, “There is, therefore, no doubt that the Constitution does not favor plural or dual citizenship and just as in regard to the period prior to the Constitution….”. However, none of these cases directly examined the vires of Section 9(1) and any remarks on Section 9(1) were merely incidental to examination of Section 9(2).

On the basis of arguments made in earlier sections as well as case laws, this post makes two further arguments.

First, at the very least, double citizenship should be granted in particular to the following two classes of people:
(a) Goans who wish to avail of Portuguese Citizenship they have by birth, while still maintaining Indian citizenship; and
(b) Indian knowledge workers who wish to take citizenship of foreign countries having friendly relationships with India.

This is because, the majority of the cases dealing with the grant of double citizenship are actually rooted in matters relating to post-partition migration from hostile neighbouring countries such as Pakistan. Herein the primary issue was that recognition of double citizenship for such persons could threaten the unity and integrity of India. Such concerns are non-existent with the people of classes (A) and (B) noted above.

Second, if Section 9 is unconstitutional, then as per Article 326 of the Constitution of India, voting rights should be conferred to OCIs resident in India. In accordance with the law as it presently stands, OCIs are explicitly not citizens of India. The OCI Law, i.e.- Section 7B of the Citizenship Act, 1955 expressly states that OCIs do not have voting rights. However, it is important to analyse how an OCI obtained his or her non-citizen status. As soon as a PIO obtains foreign citizenship, he loses his Indian citizenship.

Article 326 provides for a bar on voting rights on grounds of ‘non-residence’. However now, let us assume that the said PIO holding OCI permit relocates back to India. It is our argument that, if Section 9 of the Citizenship Act, 1955 is held to be unconstitutional, there is nothing otherwise in Indian law to make said PIO a non-citizen, as he/she is a citizen of India by birth and continues to be an Indian citizen. If the above is correct, then Article 326 shall confer voting rights upon an OCI resident in India, as the Constitution shall override Section 7B of the Citizenship Act, 1955.

Conclusion
In view of all of the above, we take the considered position that: (1) Section 9 of the Citizenship Act is unconstitutional; (2) the Constitution does not impose an absolute bar upon the Government against permitting double citizenship status (3) in light of case laws, double citizenship should be considered at least for classes (A) and (B) noted above; and (4) voting rights should be recognized for all double citizens resident in India effective immediately.

In conclusion, the involuntary divestment of India citizenship by operation of Section 9 is unconstitutional and unnecessary in the modern context. The Government of India should therefore make the necessary amendments to recognize at least the above noted two classes of people as double citizens. Voting rights to resident double citizens also must be immediately recognized. Such a conclusion would be in line with the considered position taken by various democratic countries such as USA, UK, Australia, Philippines (despite their Constitutions expressly barring ‘dual loyalty’).

Naren Thappeta is a US patent attorney and chief mentor in the Bangalore Operation of IPHorizons, a firm he founded in the year 1997. He holds a J.D. degree from Santa Clara University School of Law (1995).

Mallika Sen is currently a third year student enrolled in the B.A. LL.B. (Hons.) program at the National Law School of India University, Bangalore.